LBREPORT.com has learned that JetBlue has escalated to a formal City Council hearing, scheduled for March 13, the carrier's appeal of a decision by the City Manager to uphold a decision by LB's Airport Director upholding fines applied to JetBlue for certain (some but not all) late night flights. JetBlue disputes LB Airport's interpretation and application of verbiage in LB's current Airport ordinance relating to excusable violations of the ordinance attributable to Air Traffic Control (ATC) delays.

Management's summary of the dispute (relating to whether the ordinance exempts from fines nationwide ATC-caused delays, such as east coast weather, or only locally caused ATC delays) is summarized in the Airport Director's decision (a document requested by LBREPORT.com, provided by LB Airport and linked for our readers here.).

But the dispute arises in a larger context.

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As reported (first, again) by LBREPORT.com earlier today (Jan. 23) [here], JetBlue submitted a sternly worded Sept. 12, 2017 letter to LB Airport stating that amendments now being considered to LB's Airport ordinance that would increase night fines to deter late night ordinance violations "appear intended to have a discriminatory effect specifically on JetBlue" [and] "seem designed to encourage JetBlue to terminate service." JetBlue's Sept. 2017 letter urged the City "to proceed cautiously and to carefully consider" the company's specific comments (detailed below) warning "Any decision otherwise could lead to a protracted dispute as we believe the City's actions will violate certain Federal Aviation Administration (FAA) provisions and create regulatory conflicts with both the FAA and U.S. Department of Transportation (DOT)."

In its Sept. 2017 comment letter on the proposed ordinance amendments, JetBlue St. VP and Associate General Counsel Robert Land wrote in part:

Contrary to law, the proposed changes to penalty amounts for noise violations are unreasonably steep and appear to be arbitrarily but specifically crafted to harm JetBlue [footnote omitted here], a carrier that operates at LGB and which has a majority of its fleet operate to and from cities that disproportionately have Federal Aviation Administration (FAA)-imposed air traffic control restrictions which result in delays over which JetBlue has no control (mostly at Northeast markets in New York City and Boston and in the San Francisco bay area) which can cause late operations at Long Beach.

The current language in the Ordinance already includes a specific exemption for "aircraft operating pursuant to explicit air traffic control direction." JetBlue is currently appealing the Airport's decision that "air traffic control delays at other airports do not qualify [as an exemption]" and that the exemption "does not apply to other nationwide airports or circumstances occurring throughout the day [that result in delays at LGB]. [footnote omitted] The City's interpretation is contrary to the plain language of the Ordinance and ignores federal statutes that grant the FAA exclusive control over the entire and singular national airspace system and require JetBlue to abide by FAA air traffic control direction. By taking this position, the City is unjustly discriminating and thus violating its economic nondiscrimination obligation under the FAA's Airport Sponsor grant agreement. [footnote omitted]

We believe that the plain-language exemption in the current Ordinance should be applied fairly, impartially and as originally intended. If the City amends the Ordinance, the exemption for "explicit air traffic control direction" should include air traffic control delays at other airports or circumstances occurring nationwide that result in delays at LGB as initially written and approved by the Federal District Court and through ANCA. The Ordinance should also include specific procedures for air carriers to demonstrate that certain delays are a result of FAA explicit direction beyond the carrier's control.

The proposal to dramatically increase the fine schedule also raises potential issues under ANCA. The FAA has found that an increase in fines would violate ANCA if the underlying grandfathered restriction penalizes conduct beyond willful violations such as infractions caused by weather, air traffic control, or any other safety-based non-emergency circumstance. Specifically, in reviewing an increase in fines for San Diego's ANCA-grandfathered noise restriction, the FAA stated that "ANCA applies to any proposal by the District to further directly or indirectly affect or reduce scheduled operations that were unavoidably delayed in accordance with applicable Federal Aviation Regulations." [footnote omitted] More importantly, nowhere in its opinion did FAA state that relevant air traffic control delays were limited to delays caused or directed by the subject airport.

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Long Beach currently has the protection of a "grandfathering" provision in the federal Airport Noise Capacity Act (ANCA) that lets LB Airport (one of only a handful Airports nationally) maintain some local flight limits/neighborhood protections. If Long Beach were to lose its ANCA "grandfathering" protection (through an adverse FAA decision or in federal court litigation), LB could lose the current protections in its Airport ordinance, exposing the City of Long Beach to unlimited numbers of flights at unlimited noise levels at all hours on all runways.

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LB's Airport ordinance includes a "curfew" requiring air carriers to schedule all departures and arrivals between 7:00 a.m. and 10:00 p.m., although air carrier operations between 10 p.m. and 11 p.m. are allowed if the delays result from weather, air traffic, or mechanical issues. Violations between 10 p.m. and 11 p.m. caused by unanticipated delays beyond the operator's reasonable control (such as weather, air traffic or mechanical issues) are waived on presentation of evidence satisfactory to the City that the delayed arrival or departure resulted from these circumstances. Air carrier operations after 11 p.m. are automatically deemed violations and fined; after two warnings, a third violation brings an administrative fine of $100; the fourth and subsequent fines are $300. Proposed amendments to those fine levels are detailed on p. 9-10 of the PPT at this link.

The proposed ordinance amendment surfaced in August 2017 after 4th dist. Councilman Daryl Supernaw had been doing a slow burn for months over JetBlue's late night ordinance violations, regularly tallying the numbers in his newsletter to constituents. In his July 7, 2017 weekly newsletter, Councilman Supernaw headlined an item "JetBlue Fined Record-Breaking $168,900 for June Noise Violations" and wrote:

It has become painfully obvious, especially to those living under the flight path, that our "coveted" noise ordinance is not serving its intended purpose. JetBlue violated the 11:00 pm curfew 31 times (every night on average) and the 10:00 pm curfew 48 times last month. This clearly indicates the fine structure is not an adequate deterrent to violating the curfew. For that reason, I will be introducing a city council agenda item in the very near future to examine this issue.

Councilman Supernaw's newsletter included the following chart:

On July 7, 2017, Councilman Supernaw signaled that he planned to introduce a City Council agenda item (date not specified) to examine the issue of the LB Airport ordinance's fine structure in the context of providing a better deterrent. The Council agenda item never happened, presumably preempted by Airport management's announcement in August that it would pursue the ordinance amendments now being considered.

And the Council hearing -- with a recorded Council vote -- will pccur as vote-by-mail ballots are flying in contested citywide elections for Mayor and Councilmembers in districts 3, 5, 7 and 9.

Developing.

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